Pakistan has become a country where cases are prolonged for decades before they are concluded, and the expectation of speedy justice is murdered every day. From the subordinate to the Supreme Court, the stories of delayed justice are neither uncommon nor any different. Hardly anything different could be expected of a legal system grasping for air to breathe under the backlog of over two million cases. Ironically, instead of killing the root cause of the problem, we keep on injecting asthma shots, or using finding a “juggaar.”
Hardly any exercise of brainpower is required to conclude that Pakistan is in dire need of structural reforms in its judicial system. It is submitted that at the heart of such reforms lies three core tenets; an effective system for Alternative Dispute Resolution (ADR), a culture of cost imposition on frivolous cases, and specialized courts.
According to the Judicial Statistics of Pakistan for the year 2022 published by the Law and Justice Commission of Pakistan, the judicial branch is facing a backlog of over two million cases where cases handled by the subordinate courts make up 82% of the total pendency. While the High Courts share 16% of the cases and the Supreme Court 2%. A scientific approach compels us to focus on the district judiciary, which offers most of the public dealing and therefore, forms the backbone of our judicial system. Moreover, since in most of the cases, the subordinate courts are the courts of first instance, the mechanism of ADR should be linked therewith.
Barring the crime of oversimplification, ADR refers to the process through which the disputes of the parties are resolved without having to resort to a court of law. The tool of ADR is being employed by many countries and has gained even more traction around the globe. Although the Arbitration Act (a type of ADR) has been present in the statute book since before Partition, ADR's true utility has lately been appreciated in the higher echelons of decision-making in Pakistan, thus introducing the Alternative Dispute Resolution Act, 2017 and its counterparts in the respective provinces.
Although, the efforts of the legislature are to be appreciated. However, the model of ADR being adopted is bound to fail for the simple reason that it is a fully voluntary process and fails to cultivate an ADR conducive culture. The flaw is obvious; parties to disputes must want to indulge in ADR and without any detriment or reinforcement attached, building an environment for ADR seems too optimistic. The very idea of ADR is to ensure a platform where the parties can resolve their dispute amicably without the need to have any recourse to a court of law. This aim has been recognized by the preamble of the ADR Act 2017 which provides that the very purpose for the introduction of ADR is to ensure settlement of disputes expeditiously and without having to “resort to formal litigation.” Therefore, just providing a platform is not sufficient to improve the judicial system, rather an “effective marketing” is also important.
Although the Arbitration Act (a type of ADR) has been present in the statute book since before Partition, ADR's true utility has lately been appreciated in the higher echelons of decision-making in Pakistan, thus introducing the Alternative Dispute Resolution Act, 2017 and its counterparts in the respective provinces.
Pakistan should instead look for a model where an initial ADR effort is mandatory, whether the parties want to carry the process further is up to them. For example, in the United Kingdom, a case for a monetary claim exceeding 500 pounds cannot be instituted unless a prior effort of mediation has been made by the parties. The model of initial mandatory was adopted by Turkey with great success as in just one month since its introduction (in January 2018) Turkey received 30,828 mediation applications out of which 6,423 cases were concluded in just one month, resulting in a settlement rate of 72%. Taking this as a benchmark, this simple step is to relieve the Turkish courts of the backlog of around twenty-two thousand cases out of around thirty-one thousand that would have been instituted had it not been for the ADR.
In this regard, Pakistan should employ its already existing or rather entrenched model of jirga. This is not to insinuate that the atrocities committed in certain jirga councils are to be perpetuated, but to rather employ an entrenched structure and refurbish it to bring it under the modern system for dispensation of justice and reduce the backlog on courts. Moreover, as the jirga committee is composed of the elders of the society, which is a relevant factor in our social fabric, it is likely to produce a favorable result. Without going through a great metamorphosis, a judge and an accredited mediator and arbitrator should be necessary in every jirga committee to ensure the legality of the decisions being made.
Secondly, our courts must not run away from the idea of imposing costs on frivolous litigation and other malpractices. Although, recently there have been some voices in the upper echelons of the judicial circuit calling for a more robust environment for financially penalizing unwarranted practices, however, its ripple effect is yet to be felt in the lower orders of the judicial hierarchy.
Despite there being ample legal coverage for the courts to impose costs on unwarranted elements, take Order 28 Rule 3 of the Supreme Court Rules, 1980 and Section 35 of the Civil Procedure Code, our courts are chronically reluctant to employ these provisions to realize the effect it ought to make: to deter frivolous claims.
The reluctance of the courts to impose costs can effectively be demonstrated by a recent example where a High Court did not impose any cost on an appeal filed before it, which prayed for the setting aside of the decision of the district judge as it was claimed that no opportunity to produce evidence was granted. However, the record showed that the fiasco for non-production of evidence was to be attributed to the lawyer as 47 opportunities were granted to him, while the appeal being time-barred by nine months was a different matter altogether.
The imposition of costs on frivolous and avoidable litigation is related to an efficient ADR system as well. If the courts conclude that a party has avoided ADR to frustrate the process of law, then costs should be imposed.
A robust environment of cost imposition can not only help in eradicating frivolous litigation but also help speed the judicial process. As the courts are empowered to impose costs while granting adjournment for unreasonable grounds, such behavior would discourage the litigants from lingering on the cases for years.
Importantly, costs not only get away with frivolous litigation, but also the type of cases which could only be referred to as avoidable litigation. Just ask someone who spectates court proceedings regularly as how often they witness a case that would have been avoided if public officials had done the job they were bound to do.
If someone is to argue as to why deterrence of costs would ensure that public officials do their job. To that, I suggest that not a single public official is every ready to take up any unwarranted fiscal responsibility. Paying costs on matters that ought to have been resolved by the public machinery without the course of courts would most certainly lead to better results. However, it must be kept in mind that the magical wand of cost imposition would not smoothen the functioning of our crumbled bureaucratic machinery. But an additional deterrence of the courts could help point things in the right direction.
Additionally, the imposition of cost on frivolous and avoidable litigation is related to an efficient ADR system as well. If the courts conclude that a party has avoided ADR to frustrate the process of law, then costs should be imposed. Admittedly, there lies a very fine line, where on one hand it has to be ensured that ADR is not treated as a mere formality, but must be productive in the sense that it helps in relieving the system of some case load. While on the other hand, it must also be ensured that the deterrence of fines should not be substantial to the extent that it becomes an impediment in the path to access justice. The line between the two is perhaps so thin that it would take time before we can get it right and tailor it for our society.
It is no surprise that due to the crippled judicial system, and obviously some other reasons, Pakistan finds itself ranked at 108 out of 190 courtiers in providing ease for investors in doing business in the country.
The correlation between costs and ADR has been aptly elaborated by J. Mansoor Ali Shah in a recent judgment where he observed that “costs lay the foundation for expeditious justice” and “It also incentivizes the litigants to adopt alternative dispute resolution (ADR) processes and arrive at a settlement rather than rushing to courts”
The third facet is specialized courts. In this context, the focus would be on the commercial sphere. A country with a history of abysmal economic performance cannot expect any amelioration in its affairs without an effective and robust mechanism for contract enforcement. As has been enumerated in the World Bank report titled “Doing Business,” the ease of doing business in a country can be evaluated by studying 12 factors, 9 of which either directly or indirectly relate to law with “Contracting with the government” and “enforcing contracts” being the notable heads for our discussion. A similar sketch can be drawn by its successor report “B-Ready.” It is no surprise that due to the crippled judicial system, and obviously some other reasons, Pakistan finds itself ranked at 108 out of 190 courtiers in providing ease for investors in doing business in the country.
It is therefore imperative that special care be accorded to this cause if Pakistan wishes to do any good in bringing foreign investment that it so dearly wants to buttress its economy. In this regard, some proactive steps have been taken by the Lahore High Court by introducing commercial courts within the jurisdictional limits of Punjab. This specialized platform employs some encouraging steps such as e-filing and e-processing, which can be of great help in building the confidence of foreign investors by remotely providing access to judicial doors. Although this effort is to be highly appreciated and could be taken as a test case, it cannot be deemed to suffice for the entire country.
Pakistan needs a country-wide network of commercial courts, with highly trained judges. Suffice it to say that one or two weeks of training, which has been the usual case, would not be sufficient. It must be ensured that the judges not only understand the legal, but also commercial intricacies of the economy, which would require a lengthy training process, perhaps even calling the help of business institutes around the country.
In conclusion, it is true that all is not lost for Pakistan, but the country is in dire need of revamping its approach to judicial questions and problems, lest all will be lost.